Labor Challenge
Wolfenson Lawyers provides legal advice and support to its clients in matters of jurisdiction and lawlessness.
Our firm provides its clients with legal guidance to assert their labor rights, among them labor jurisdiction and lawlessness. We represent your interests before the courts of law for an effective and timely protection of your claims. With highly experienced lawyers in labor law, we provide our clients with the necessary advice to seek excellence in the legal service in Chile.
Below we present a legal guide on the jurisdiction and lawlessness:
What is a labor lawlessness trial?
The labor forum consists of the privilege that certain workers have, among them union leaders and workers who are in pre and post natal pregnancy . By the institution of the labor jurisdiction, such workers can not be fired without first declared by the court lawlessness of the same worker, which is the resolution of the court by which authorizes the employer to be dismissed later, with no right to compensation.
In the impeachment trial, the worker must defend himself and answer the claim 5 days before the preparatory hearing , and oppose the impeachment and in this sense remain in his job, or alternatively negotiate a term of the employment relationship after paying certain remunerations that they had to be obtained until the end of the labor jurisdiction, which in the case of mothers lasts up to one year after the end of the postnatal period.
What is the duration of the maternal jurisdiction of the workers with a fixed-term contract?
The maternal jurisdiction protects the worker from the beginning of the pregnancy and up to one year after the end of the postnatal period (ruling out the parental postnatal period ). In this way, the female worker hired for a fixed term has the right to maternal jurisdiction , and the employer cannot terminate her employment contract unless she has prior authorization from the competent Labor Court , which can grant non-compliance if the grounds invoked It is the expiration of the agreed term for the duration of the contract or the conclusion of the work or service that gave rise to the contract or any of the disciplinary causes of article 160 of the Labor Code.
In accordance with the provisions of article 201 of the Labor Code , the worker enjoys maternal privilege from the beginning of her pregnancy and until one year after the postnatal leave expired, excluding the parental postnatal leave established in article 197 bis. During this period, the dependent is subject to the provisions of article 174 of the aforementioned Code, a rule that prescribes that the employer may not terminate his employment contract except with the prior authorization of the competent judge, who may grant it if the cause invoked It is the expiration of the agreed term for the duration of the contract or the conclusion of the work or service that gave rise to the contract or any of the causes provided for in article 160 of the Labor Code . In this way, when the worker is admitted to the maternal jurisdiction , it is only appropriate that the employer can terminate the contract if she has the express authorization of the Labor Judge , and to do so, she must initiate a trial of lawlessness in the Courts of Justice . It is appropriate to point out that the circumstance that the dependent is subject to a fixed-term contract does not alter the right to maternal jurisdiction in any way, since the legislator has expressly indicated that the judge can grant the lawlessness on the grounds of article 159 N ° 4 of the Labor Code , that is, due to expiration of the agreed term.
How long does the maternal jurisdiction last?
The maternal jurisdiction protects the worker from the beginning of the pregnancy and up to one year after the end of the postnatal period (ruling out the parental postnatal period). As a general rule, the jurisdiction lasts until the child reaches one year and 84 days of age, unless there is a supplemental postnatal rest license, which would extend the maternal jurisdiction until one year after the end of said rest.
In accordance with the provisions of article 201 of the Labor Code , the maternal jurisdiction enjoyed by a pregnant worker extends from the beginning of her pregnancy and until one year after the expiration of maternity leave , excluding the postnatal parental leave established in article 197 bis . In other words, as a general rule and unless there is a supplementary postnatal rest license , the jurisdiction would continue until the child reaches one year and 84 days of age.
(SEE: Article 201 Labor Code)
Should the worker who enjoys maternal privilege be dismissed and then return to normal work, return to the employer the amounts received as compensation for years of service and the replacement of the previous notice?
The Directorate of Labor has indicated in its administrative jurisprudence , among others, in opinions 3160, of 06.22.84 and 38489/155, of 07.15.92, that after the return to work, the employee must reimburse the compensation for years of service and other benefits that may have been received on the occasion of the termination of the employment relationship that has been terminated.
If the employer had to reinstate a fired worker who had a job , who after being fired and who for the term of the services received the compensation for years of service and the replacement of the previous notice, to the normal work , the Directorate of the Work has indicated in its administrative jurisprudence , among others, in opinions 3160, of 06.22.84 and 38489/155, of 07.15.92, that produced the return to work, the employee must reimburse the compensation for years of services and other benefits that would have received on the occasion of the termination of the employment relationship that has been terminated.
What is supplemental postnatal rest and what is its incidence on the duration of the jurisdiction?
Supplemental postnatal rest is the extension of postnatal rest as a result of a disease of the mother due to the birth of the child, verified with a medical certificate and preventing her return to work for a period longer than postnatal rest . This break will last for the time determined by the doctor or midwife in charge of medical care for the worker, maintaining the right to subsidy or payment of the license . (SEE: Labor Code, article 196)
In accordance with the provisions of article 195 of the Labor Code , the worker is entitled to a maternity leave of twelve weeks after delivery. Now, if as a consequence of childbirth there is a proven disease with a medical certificate, which prevents the return to work for a period longer than postnatal rest, postpartum or postnatal rest will be prolonged for the time determined by the care service preventive or curative medical. The woman who is in this period of supplementary postnatal maternity rest has the right to receive a subsidy equivalent to the average of the net monthly remuneration, the subsidy or both, that have been earned in the three calendar months closest to the month in which the license starts. In the event of granting a supplemental postnatal leave, the period of maternal jurisdiction will be prolonged, since according to the provisions of article 201 of the Labor Code , the maternal jurisdiction enjoyed by a pregnant worker extends up to one year later after the postnatal rest has expired, excluding the parental postnatal leave established in article 197 bis.
Does the worker who voluntarily quit her previous job enjoy maternal protection with the new employer?
Yes. The worker, who having maternal jurisdiction, renounces a company and enters into an employment contract with another employer has the right to maternal jurisdiction and, consequently, for the purposes of ending the respective relationship, the employer could request the corresponding judicial authorization.
According to the provisions of Article 201 of the Code of Labor, the worker has maternity leave from the beginning of their pregnancy and up to a later year expired rest of postnatal excluding postnatal parental consent laid down in Article 197 bis. During this period, the dependent is subject to the provisions of article 174 of the aforementioned Code, a rule that prescribes that the employer may not terminate his employment contract except with the prior authorization of the competent judge, who may grant it only in cases of the grounds indicated in numbers 4 (expiration of the agreed term) and 5 (conclusion of the work that gave rise to the contract) of article 159 and in the grounds of article 160 of the aforementioned Code, that is, for disciplinary reasons in the event of events committed by the worker. In this way, when the worker is admitted to the maternal jurisdiction , it is only appropriate that the employer can terminate the contract if she has the express authorization of the Labor Judge , and to do so, she must initiate a trial of lawlessness in the Courts of Justice . In the case of maternal jurisdiction, the protected legal asset is "maternity", which translates into the impossibility of ending the employment contract of the working woman who is entitled to this prerogative, thus ensuring her source of income that They allow him to protect the normal development of his state of pregnancy and later, to cover the expenses of feeding and raising his son during the period that comprises the aforementioned jurisdiction.
However, the protection of the maternal jurisdiction protects the worker from a dismissal by her employer, not preventing the worker from terminating her contract, so there is no impediment for the worker to materialize a resignation from her job. In this sense, it should be noted that the Labor Directorate has indicated in its administrative jurisprudence , among others in opinion 4535/209 of 05.08.94, that the worker, who enjoying maternal privilege, voluntarily withdraws from a company and celebrates a contract Working with another employer, you have the right to invoke before your new employer the prerogative of the jurisdiction that protects you, whether at the date of execution of said contract you are pregnant or have a newborn child or are in the postpartum period or within the year following the expiration of said period, therefore, for the purposes of terminating the respective relationship, the corresponding judicial authorization must be requested in accordance with the aforementioned article 174.
Can the father get postnatal leave if his spouse dies in childbirth or during the period after it?
In the event that the mother of the minor dies in childbirth or during the period following it, the father or the person to whom custody of the minor is granted, shall enjoy the right to postnatal rest or what remains of it with the corresponding subsidy and labor law . In any case, the father who is deprived by judicial sentence of the personal care of the minor will lose the right to jurisdiction and subsidy indicated.
In accordance with the provisions of article 201 of the Labor Code , the worker enjoys maternal privilege from the beginning of her pregnancy and until one year after the postnatal leave expired, excluding the parental postnatal leave established in article 197 bis . On the other hand, according to what is established in article 195 of the Labor Code , the worker has the right to a maternity leave of six weeks before childbirth and twelve weeks after it. Subsection 3 of article 195 of the aforementioned Code indicates that if the mother died in childbirth or during the period after it, the postnatal leave or the rest of it that is intended for the care of the child, will correspond to the father or to whom custody of the minor is granted, who will enjoy the jurisdiction established in article 201 of the Labor Code and will be entitled to a subsidy equivalent to the average of the monthly net remuneration, the subsidy or both, that have been earned in the three calendar months closest to the month the license starts .
In this way, in the event that the child's mother dies in childbirth or during the period after it, the father or the person to whom custody of the child is granted, will enjoy the right to postnatal rest or whatever remains of him with the corresponding subsidy and labor jurisdiction . In any case, the father who is deprived by judicial sentence of the personal care of the minor will lose the right to jurisdiction and subsidy indicated.
Is the period of maternal jurisdiction extended in case the worker uses a medical leave for serious illness of the child under one year of age?
The existence of a leave for a serious illness of a child under one year of age does not affect in any way the duration of the maternal jurisdiction , so that it extends only up to one year after the end of the postnatal leave . Nor does the postnatal parental leave established in article 197 bis of the Labor Code affect the duration of the jurisdiction .
In accordance with the provisions of article 201 of the Labor Code , the maternal jurisdiction enjoyed by a pregnant worker extends from the beginning of her pregnancy and until one year after the expiration of maternity leave, excluding the postnatal parental leave established in article 197 bis. In this way, the existence of a leave for serious illness of the child under one year of age does not affect in any way the duration of the maternal jurisdiction, so that it extends only up to one year after the end of the post natal leave. Nor does the postnatal parental leave established in article 197 bis of the Labor Code affect the duration of the jurisdiction .
Is the maternal jurisdiction of the worker who, due to any circumstance, interrupted her state of pregnancy or her son born dead?
The worker who interrupts her pregnancy due to an abortion , spontaneous or provoked, or who suffers the loss of her newborn child or whose child is born dead, is not entitled to enjoy the maternal jurisdiction provided for in article 201 of the Labor Code.
Opinion 3.143 of 05.27.85, from the Labor Directorate , indicates that in the case of maternal jurisdiction, the protected legal asset is maternity; and its purpose is to maintain the woman's employment so that she has insured the origin of her income and can feed and raise her son during the span of one year. From the foregoing, it follows that the worker who interrupts her state of pregnancy by an abortion, spontaneous or provoked, or who suffers the loss of her newborn child or whose child is born dead, does not have the right to enjoy the maternal jurisdiction provided for in the article 201 of the Labor Code , considering that, in such circumstances, there is no child to care for, a legal presupposition that makes women creditors with special protection in terms of permanence in the employee. In this way, as determined by the administrative jurisprudence of the Labor Directorate , the dependent whose child has been born dead would not have maternal jurisdiction from the occurrence of such event.
Wolfenson Abogados provides excellent legal advice in matters of jurisdiction and lawlessness.
Links of interest on the jurisdiction and lawlessness :
1.- Labor Code
Wolfenson Lawyers. Chile Law Firm.
If you need more information and legal advice regarding labor lawlessness, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.